Carcieri v. Salazar

Carcieri Fix Talk Monday on Native America Calling

Matthew L.M. Fletcher2 Comments

Here:

Monday, March 22, 2010 (1-2 PM, eastern) – The Carcieri Fix:
Last year the Supreme Court ruled in Carcieri v. Salazar that language in the 1934 Indian Reorganization Act does not allow the Interior Secretary to take land into trust for the Narragansett Tribe of Rhode Island because the tribe was not federally recognized in 1934. Tribal leaders immediately turned to their allies in Congress to pass a “Carcieri Fix” – a bill that would reverse the court’s decision. But the fix has not been passed. Does Indian Country have the clout to pull it off? Guests include Matthew Fletcher (Grand Traverse Band of Ottawa/Chippewa) of the Michigan State University College of Law.

Opening Brief in Carcieri-Based Challenge to Santa Ynez Chumash Fee to Trust Decision

Matthew L.M. Fletcher

The case is Preservation of Los Olivos v. Pacific Regional Director, Bureau of Indian Affairs, in the IBIA.

Here: Appellants Opening Brief

News article here, via Pechanga.

Additional materials:

DCT Order Remanding to DOI (7/9/2008)

Northwest Indian Bar Association Winter 2009-2010 Newsletter

Matthew L.M. Fletcher

Here.

Articles on the recovery act, Carcieri v. Salazar, and Allen Sanders.

Op/Ed re: Carcieri Fix

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

The Grand Traverse Band of Ottawa and Chippewa Indians celebrates its 30th anniversary of federal recognition this year, but nothing, apparently, is sacred in ever-changing federal American Indian policy.

A controversial Supreme Court ruling last year blocks many American Indian tribes recognized by the U.S. Interior Secretary after 1934 from making more land-to-trust applications.

The high court’s Carcieri vs. Salazar ruling on Feb. 24, 2009, and politics surrounding a proposed legislative fix, show just how frustrating, confounding and shameful federal American Indian policy has been over more than two centuries of American history — and apparently still is.

The ruling appears to have no effect on the Grand Traverse Band, which was recognized in 1980. In fact, the Interior Department approved trust status for 78 acres in Antrim County on Dec. 10.

The ruling also does not appear to affect two other area tribes — the Little Traverse Bay Bands of Odawa Indians in Emmet County and the Little River Band of Ottawa Indians in Manistee County, both recognized in 1994 by federal statute. Continue reading →

SCIA to Consider the Carcieri Fix and Akaka Bills Tomorrow

Matthew L.M. Fletcher

Here is the agenda for tomorrow’s meeting, from SCIA.

Scott Taylor on Indian Taxation after Carcieri

Matthew L.M. Fletcher

Scott Taylor has posted “Taxation in Indian Country after Carcieri v. Salazar,” forthcoming in the William Mitchell Law Review.

Here is the abstract:

Federally recognized Indian tribes are governments within our federal legal system. Tribes have aboriginal sovereignty that provides them with inherent governmental powers, such as the power to tax. Tribal sovereignty also protects tribes from state interference, such as state taxation of tribal lands. Both the exercise of tribal governmental powers and the tribal immunity from state interference have a territorial component. This makes the status of Indian lands a critical inquiry into tribal/state relations. Because of the importance of land status in federal Indian law, especially in matters involving taxation, the decision of the United States Supreme Court in Carcieri v. Salazar deserves special attention. In the Carcieri case, the Court held that the Secretary of the Interior did not have the statutory authority to place lands into trust on behalf of Indian tribes that were recognized after the enactment of the Indian Reorganization Act of 1934. This article explores taxation in Indian Country after Carcier

Fitch Ratings Waiting for Federal Government to Make Indian Gaming Decisions

Matthew L.M. Fletcher

From dBusinessNews (via Pechanga):

In a special report released today (Nov 2009 Fitch Report), Fitch Ratings says there are two important issues that will determine the future for the Native American gaming industry’s expansion: whether tribes will have access to the debt capital needed to finance growth, and federal government policy decisions regarding approvals for future Native American gaming developments on off-reservation lands. Investor sentiment on the Native American gaming sector has soured in this economic downturn, as poor trends in regional gaming markets pressure credit profiles, three tribes defaulted on bond payments in 2009, and the Mashantucket Pequot Tribal Nation recently announced a forbearance agreement with its senior lenders after the Tribal Chairman made comments highlighting investors’ concerns about the unique legal issues involved in lending to a tribal government.

Fitch believes many investors are likely to take a ‘wait-and-see’ approach with respect to these ongoing debt workout and restructuring efforts before committing significant additional funds to the sector, making it unlikely a tribe would be successful in arranging debt financing for a large-scale greenfield casino development at the present time (for additional information on this topic see Fitch research ‘Managing Through Distress: Considerations for Investors in Distressed Native American Gaming Credits’, dated May 11, 2009). However, over the longer term, the federal government’s policy stance with respect to approvals for off-reservation gaming projects will be the most important factor shaping the future growth path of the Native American gaming industry.

‘Right now the Native American gaming sector is feeling the effects of poor gaming operating trends and unfavorable credit market conditions, but those issues are likely to be less limiting down the road assuming an economic recovery and improved investor sentiment on the sector,’ said Megan Neuburger, Director at Fitch. ‘Actions taken by the federal government under the Bush Administration in 2008 were clearly an effort to curb off-reservation gaming expansion. Department of Interior officials have recently made public comments that they are in the process of reviewing their policy on off-reservation gaming approvals, and we’re closely following the developments to assess their impact on the industry.’

According to the report, since the promulgation of the Indian Gaming Regulatory Act (IGRA) set the framework for the Native American gaming industry in 1988, there has been significant political controversy. Proponents of expansion tout the benefits of economic development, while opponents decry ‘reservation shopping’ and the ills associated with the expansion of casino gaming. While it has never been easy for a tribe to obtain the regulatory approvals necessary for gaming on off-reservation land, recent developments have made the likelihood of a successful outcome even more remote. These developments include guidance and a rule published by the U.S. Department of the Interior in 2008, as well as the 2009 U.S. Supreme Court ruling in Carcieri v. Salazar.

In the special report, Fitch explains these developments, the associated impact on the approval process, and the actions the federal government may take under the Obama Administration with respect to these issues, as well as providing a summary of the implications for the credit outlook for the sector. ‘Native American Gaming Insights: Off-Reservation Gaming Approvals: How Will the Feds Play Their Hand?’ is now available on Fitch’s web site at ‘www.fitchratings.com’.

Additional information is available at ‘www.fitchratings.com’.

Bill Rice on the Carcieri Fix in ICT

Matthew L.M. Fletcher

from ICT:

Recent newspaper reports suggest that there is concern in Rhode Island, and perhaps elsewhere, that aCarcieri fix to the Indian Reorganization Act of 1934 will allow tribes to acquire trust land wherever they choose, resulting in tribes building Indian casinos willy-nilly outside their reservations and without appropriate input from the state. These reports appear designed to create unjustified fears of an Indian gaming boogey man hiding in a closet of the Carcieri fix.

In February, the Supreme Court interpreted the IRA as granting the secretary of the Interior authority to acquire land only for tribes under federal supervision when the IRA was enacted in 1934 – thereby creating “second class” tribes of those brought under federal authority after 1934.

As a result of this litigation, a development meant to provide homes for tribal members has sat uncompleted and deteriorating for many years. The Carcieri fix would simply put all federally recognized tribes on equal footing, creating an even playing field in matters of land acquisition. This would, in turn, allow the secretary of the Interior to acquire land from willing sellers to meet the needs of Indian tribes and their people. All peoples are entitled to peacefully acquire lands for homes, sustenance, and to pursue their social, cultural and economic development. Indian peoples are not excepted from this rule.

Continue reading →

Rep. Kennedy Predicts Carcieri Fix Could Pass Congress This Year

Matthew L.M. Fletcher

From How Appealing:

“Kennedy predicts ‘Carcieri fix’ bill might pass”: Today’s edition of The Providence (R.I.) Journal contains an article that begins, “Rep. Patrick J. Kennedy said Thursday that a bill to reverse a U.S. Supreme Court decision blocking special land status for the Narragansett Indian tribe could become law during this Congress.”

From ProJo:

WASHINGTON — Rep. Patrick J. Kennedy said Thursday that a bill to reverse a U.S. Supreme Court decision blocking special land status for the Narragansett Indian tribe could become law during this Congress.

Democrat Kennedy also declared his support for such legislation — the only member of Rhode Island’s congressional delegation to do so.

Enactment of the legislation — which may have implications for tribes across the country — is “likely to happen” if supporters of the measure are able to attach it to a major piece of legislation that is certain to pass both houses of Congress, Kennedy said.

Continue reading →

Prepared Testimony of Carcieri Hearing Witnesses

Matthew L.M. Fletcher

From the House Resources Page:

Witnesses:

Panel 1

The Honorable Michael Arcuri
U.S. House of Representatives, 24th District (D – NY)

Panel 2

Mr. Donald Laverdure
Deputy Assistant Secretary of Indian Affairs
U.S. Department of the Interior
Washington, D.C.

Panel 3

The Honorable Bill Iyall
Chairman
Cowlitz Indian Tribe
Longview, Washington

The Honorable Janice Mabee
Chairman
Sauk-Suiattle Indian Tribe
Darrington, Washington

The Honorable Sandra Klineburger (Attachment)
Chairwoman
Stillaguamish Tribe of Indians
Arlington, Washington

The Honorable Richard Blumenthal
Attorney General
Office of the Attorney General
Hartford, Connecticut

Mr. Steven Woodside (Attachment 1) (Attachment 2) (Attachment 3)
Sonoma County Counsel
On behalf of the California State Association of Counties
Sacramento, California

Mr. Riyaz Kanji
Kanji & Katzen, P.L.L.C.
On behalf of The Grand Traverse Band of Ottawa and Chippewa Indians
Ann Arbor, Michigan